Supreme Court Litigation with Donald Ayer

August 31, 2009Duke Law News

Aug. 31, 2009 — A new seminar is giving Duke Law students insight into the unique nature of litigation in the nation’s highest court.

Supreme Court Litigation is taught by Senior Lecturing Fellow Donald Ayer, a partner at Jones Day in Washington, D.C., and former United States deputy solicitor general. A veteran of 17 Supreme Court arguments, with one more on the docket in the coming term, Ayer observes that the lawyer’s role is different from that in other appellate litigation.

“Because the Supreme Court has almost entirely discretionary jurisdiction, the lawyer’s job is, first, to get the case granted — or to convince the court not to grant a petitioner’s case,” he says. After taking an in-depth look into why the Court takes cases and how the certiorari process works, students in Ayer’s course will each draft a short opposition brief to a real “cert” petition.

“It tests their ability both to write and to understand what in the petition made it a credible case for the Court to review,” Ayer explains.

Later in the semester each student will draft a short reply brief on the merits in another case in which the Court has granted cert and and which the class will have already studied in some depth. Other class sessions will focus on the role of amici curiae — non-parties to the case before the Court who submit briefs on issues raised — and the role of the Solicitor General’s Office.

Substantial time will be devoted to oral argument. Students themselves will engage in a number of oral arguments of cases on the Court docket in the coming term. These exercises, says Ayer, help students appreciate the intensively “iterative” nature of the process in a court that is only interested in taking legal issues.

“As you move from the first time you hear about a case to the cert process and through the merits briefings and then to oral argument, your way of thinking about it evolves greatly. And it evolves greatly because of a dialectic back and forth among a variety of people, including moot court judges who tell you directly and often in a very blunt way what the problems are with your case.”

Ayer and Professor Neil Siegel have arranged a series of Supreme Court moots at Duke Law in the fall 2009 semester — including two of the cases Ayer’s students will be arguing in class. It will allow them to witness the unique challenges of high court oral argument, he says, which involves reducing complicated issues down to 30-second ‘sound bites.’

“You have to find a way to say things in response to the questions the justices ask that move your case along and answer their questions,” says Ayer, who also teaches Supreme Court Litigation at Georgetown Law Center. “You have to find out how, in responding to their sometimes rather abrupt questions, you will say things that are persuasive and feel and sound right. And you can’t just stand on the narrow ground of your case, but must be ready to talk about the issue involved. There’s a huge amount of preparation involved.”

Kristin Cope ’10 says she hopes to eventually engage in appellate litigation, so she is taking the course to better understand the Supreme Court process. “Mr. Ayer’s class seemed like a great — and rare — chance to learn about a specific, but important part of appellate advocacy,” says Cope, who is active as a moot court participant and bound for a clerkship with Judge David W. McKeague of the United States Court of Appeals for the Sixth Circuit.

“I became even more excited when we had our first class,” she adds. “Mr. Ayer is obviously very knowledgeable and intends to provide exposure to all aspects of the process. Nowhere else in law school do you hear several real Supreme Court arguments, analyze the specific style needed in that venue, or focus on the kind of writing needed for an Opposition to Certiorari, for example. And few schools can offer you such an experience! I anticipate that the class will be very helpful in a hands-on way, and may very well end up being one of my favorites in law school.”